Railway loses court appeal in fatal Surrey crash

The Southern Railway of British Columbia has lost a court appeal it launched concerning a 2007 crash between a car and a train that seriously injured two men and killed a third at a crossing in North Surrey.

Last year a B.C. Supreme Court judge found the railway company “vicariously liable” for a conductor’s negligence in connection with the crash, which happened at about 10 p.m. April 16, 2007 north of the intersection of Scott Road and Larson Road, at the foot of the Pattullo Bridge near the waterfront and about a block from the Scott Road SkyTrain station.

Treves Rylendra Chand was driving a 1992 blue Ford Taurus and had two passengers, Kamaljit Kalyan and Rick Kumar. Kalyan was in the front seat, and Kumar in the back. The Taurus struck the front left side of the locomotive. Kumar’s injuries were fatal. The court heard the train was doing about 25 kilometres an hour, at the most.

Chand, who had been seriously injured and had no memory of the crash, filed a negligence lawsuit against Southern, contending the crossing lights didn’t activate to warn them the train was about to cross. His lawsuit maintained Southern was negligent in maintaining the lights, and that at the time of the crash at least one crew member on the train was negligent in carrying out their duties, raising the issue of vicarious liability.

Justice Loryl Russell presided over the nine-day trial in Vancouver. She found the bells and signal lights hadn’t been functioning on the south side of the Scott Road crossing when the collision happened. She found the conductor, Steve Cohen, was responsible for keeping a lookout on the train’s left side and found him negligent for failing to notice the signal lights hadn’t been flashing for at least 20 seconds before the train reached the crossing.

“In these circumstances,” Appeal Court Justice Lauri Ann Fenlon noted in her reasons for judgment, “Mr. Cohen had a duty to stop the train and manually guide it through the crossing.”

The railway filed an appeal with the Court of Appeal for British Columbia in Vancouver, challenging Russell’s finding that Chand was not contributorily negligent, despite his not having any memory of the crash and having pleaded guilty to a regulatory fine.

During the nine-day trial the railway argued Chand was required to approach the crossing with caution but failed to do so, that his guilty plea proved he’d been driving erratically, and that’d he hadn’t been wearing a seatbelt. Russell found, however, that Southern failed to prove he didn’t have his seatbelt on. She also found he had not been speeding or driving erratically. As for the guilty plea, the trial judge noted “the fine was quite minor, with the stakes of this subsequent proceeding being much higher. In those circumstances, it is not surprising that Mr. Chand chose to enter a guilty plea.”

On June 22, 2009, Chand had pleaded guilty under the Motor Vehicle Act to driving a vehicle without due care and attention, for which he was fined $1,500. Russell noted Chand had no memory of the collision “and so he could not offer a full and robust defence.” She found his guilty plea did not constitute proof he had been driving without due care or erratically.

“In my view,” Fenlon found, “it is clear from the judge’s reasons read in the context of the record why she found Mr. Chand had not failed to take reasonable care for his own safety in the particular circumstances of the case before her.

“Those circumstances included Mr. Chand driving at the speed limit, not erratically, the absence of flashing lights and bells at the crossing, and the suddenness of the train’s appearance,” Fenlon observed. “In my opinion, it is implicit in the reasons of the judge that she found there was nothing Mr. Chand could have done to avoid or minimize the effects of the accident. I would accordingly dismiss the appeal.”